In a recent ruling, the Allahabad High Court has held that when the appellant or his counsel is not present, the case may only be dismissed in default. It was viewed that the term “ex-parte” in Rule 63(4) of the Uttar Pradesh Value Added Tax Rules ( OVAT Rules ), 2008 can be interpreted as for want of representation of the defendant after service of notice.
The issue was whether the Commercial Tax Tribunal can proceed to consider and decide the appeal ‘ex parte’ in absence of the counsel for Rajdhani Arms Corporation, the revisionist/appellant. It was argued that Order IX, Rule 6(1)(a) of CPC if summons were duly served and defendant did not appear, the Court was at liberty to direct hearing of the case ex-parte. Subsequently, the case would be heard and decided on its merits.
It was argued that when the counsel for appellant/ appellant himself did not appear, the appeal out to have been dismissed for want of prosecution rather than dismissal on merits. Counsel for revenue relied on Rule 63(4) to argue that when service of notice is complete and yet either party does not appear, the appeals can be decided ex-parte.
Rule 63(4) of the Uttar Pradesh Value Added Tax Rules, 2008 provides that appeal must be decided after hearing parties and perusing relevant records, however, if after service of notice either party has not appeared, an appeal can be decided ex-parte. Rule 63(5) provides that judgment in appeal should include the points of determination, decision on the points and reasons for the decision.
The Court observed that the term “ex-parte” has not been defined in the Rules. In Order IX Rule 6 (a) CPC, “ex-parte” is taken to mean where the plaintiff has appeared, but the defendant is absent. It was observed that Order IX Rule 8 CPC which provides for orders in absence of plaintiff does not include the word “ex-parte”.
A single bench of Justice Alok Mathur held that in cases where the appellant is not present, the Tribunal must dismiss appeals “for want of prosecution” instead of deciding them on merits ex-parte.
It was held that ex-parte orders on merit can only be passed in absence of respondent, provided service of notice is complete. In absence of appellant/plaintiff, the case can only be dismissed in default for want of prosecution. The court set aside the ex-parte order with a direction to the Tribunal to expedite the case and give opportunity of hearing to both parties.
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